Mr Shane Bradley Green v

[2022] FWC 1558

[2022] FWC 1558

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Shane Bradley Green
v

Pilbara Iron Company (Services) Pty Ltd

(U2022/1783)

DEPUTY PRESIDENT BINET PERTH, 23 JUNE 2022

Application for an unfair dismissal remedy

1. On 9 February 2022, Mr Shane Bradley Green (Mr Green) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Pilbara Iron Company (Services) Pty Ltd (Rio Tinto).

1. On 21 February 2022, Rio Tinto filed a Form F3 - Employer response to unfair dismissal application.

1. On 16 February 2022, the matter was listed for a staff conciliation to be held over the telephone on 14 April 2022. The parties were instructed by way of letter, to provide their most suitable contact number to be used at the conciliation by 23 February 2022.

1. On 11 April 2022, as Mr Green had not confirmed his contact number, the FWC attempted to contact him on the number listed in the Application. A voice message was left requesting he call back to confirm the correct number to be used for the conciliation.

1. On 14 April 2022, the date listed for conciliation, a FWC conciliation attempted numerous times to contact Mr Green using the number listed on the Application. Several voice messages were left. The conciliation did not proceed.

1. On 12 May 2022, the Application was allocated to my Chambers for determination.

1. On 16 May 2022, my Chambers wrote to the parties advising that the matter had been allocated to me for determination of the merits of the Application. Information relating to applications dealing with Covid-19 vaccination and Dismissal were provided.

1. Mr Green was directed to review the materials provided and advise my Chambers whether he wished to proceed with his application by 18 May 2022. He was advised that should he wish to proceed, directions for the filing of material would be issued to the parties and that the matter would be listed for hearing.

1. Mr Green did not respond to this request. On 23 May 2022, in absence of any response from Mr Green, my Chambers advised the parties that directions would be issued the following day for the hearing and determination of the Application.

1. Directions were issued to parties on 24 May 2022 which required Mr Green to file his materials in relation to the merit of the Application by 4pm (AWST) Thursday 2 June 2022 (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

1. Mr Green failed to file any materials in accordance with the Directions.

1. On Thursday 2 June 2022, Chambers wrote to Mr Green and reminded him that his materials in relation to the merits of the Application were overdue.

1. On Friday 3 June 2022 Rio Tinto made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Green failed to comply with the Directions (Dismissal Application).

1. Section 399A of the FW Act provides:

“399A Dismissing applications

(1)   The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a)   failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b)   failed to comply with a direction or order of the FWC relating to the application; or

(c)   failed to discontinue the application after a settlement agreement has been concluded.

Note 1: for other power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2)   The FWC may exercise its power under subsection (1) on application by the employer.

(3)   This section does not limit when the FWC may dismiss an application.”

1. Mr Green failed to file the materials he was directed to file by the dates specified in the Directions. As at the date of this decision Mr Green has still not filed any materials in support of the Application or in response to the Dismissal Application. Mr Green has not sought an extension to file his materials in support of the Application or in response to the Dismissal Application. I am satisfied that Mr Green has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of Rio Tinto and in the exercise of my discretion under section 399A of the FW Act I decided to dismiss the Application.

1. An Order[1] to this effect was issued on 9 June 2022.

DEPUTY PRESIDENT

[1] PR742481.

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